Massachusetts

July 19, 2016

Wasn’t it just yesterday (or 10 months ago) that we received this “confidential memo” from the Volkswagen diesel cheating crisis management team? It noted, in part:

This week, ALEC officially launched a web site about what state lawmakers can do to immunize corporate lawbreakers like us. Can you feel a smile coming on?

Although the U.S. Department of Justice will probably just slap our wrists, we’re deathly afraid of private actions brought by state Attorneys General and class actions by angry customers.

Granted, that was all tongue-in-cheek - but it now seems kinda prescient!

Turns out that the state attorneys general of New York and Massachusetts have now sued the company following a massive investigation. As reported by the New York Times, these offices have uncovered evidence that “directly challenged Volkswagen’s defense over its emissions deception, calling the decision to thwart pollution tests an orchestrated fraud that lasted more than a decade, involved dozens of engineers and managers and reached deep into the company’s boardroom.”

Writes the Times, “the New York civil complaint, drawing on internal Volkswagen documents, emails and witness statements, depicts a corporate culture that allowed a ‘willful and systematic scheme of cheating,’ according to an advance copy of the suit.” And, "[f]or the first time, the New York complaint connects Volkswagen’s chief executive, Matthias Müller, to the scandal.” You may remember Müller as the guy who replaced that other guy, i.e., scapegoat CEO Martin Winterkorn, who quit in September. Although both deny any wrongdoing, the AGs found:

Mr. Müller and Mr. Winterkorn were informed in 2006 that Audis with 3-liter diesel engines needed additional equipment to meet American standards. Specifically, they needed a larger tank to hold the chemical solution used to neutralize nitrogen oxide emissions in the exhaust.

But Volkswagen and Audi, the complaint said, did not want to spend the money necessary to redesign the cars to accommodate larger tanks. Instead, the company decided to deploy defeat devices. Both Mr. Winterkorn and Mr. Müller held senior positions at the Audi unit at the time.…

Soon after, Volkswagen began preparing for a marketing offensive in the United States built around diesel. Internal Volkswagen documents said that diesel would be used to create an “environmental halo” over the brand.

The “clean diesel” advertising, according to the complaint, was false and part of the fraud Volkswagen perpetrated on consumers.

Here are some other highlights:

The complaint, in part, cited a tongue-in-cheek Audi commercial broadcast in 2010 that portrayed people being arrested by the “Green Police” for installing incandescent light bulbs, overheating their swimming pools or failing to compost. At the end, the Green Police inspect cars at a roadblock, waiving through a driver in an Audi A

After “engineers at West Virginia University published a study in which two unidentified diesel cars were found to have polluted up to 40 times more on highways than they did under laboratory conditions … there was widespread alarm" inside the company. That led to a 17-month “campaign to ‘mislead and confuse’ regulators and the public.” When California regulators got involved, “executives’ emails ‘began to reflect desperation and panic'” with “one executive, facing questions from suspicious California officials about the functioning of the emissions system, wrote to co-workers, ‘Come up with the story, please!’”

Gotta wonder how/why Volkswagen thought it would never get caught. Perhaps that’s the scariest question of all.

October 20, 2015

The “blue wall of silence” – if you haven’t heard the term before - is a troubling reality that many victims of police misconduct must overcome, namely “the unwritten rule that exists among police officers not to report on a colleague's errors, misconducts, or crimes … or [to] claim ignorance of another officer's wrongdoing.” Some believe this attitude has contributed to patterns of police brutality, so it’s disturbing to now learn that this “code” is essentially being required of victims and the public, as well.

The Wall Street Journal has an article today about the conditions forced upon victims of police brutality with whom the city of Baltimore reaches legal settlements – namely, silence. The paper writes, "In 95% of police-misconduct cases, as well as in some other types of disputes, Baltimore requires the plaintiff’s public silence, beyond saying that a satisfactory settlement was reached, according to Baltimore Solicitor George Nilson."

And make no mistake, silence is enforced.

Violating that restriction can result in a settlement being cut in half.

The city last year withheld $31,500 of one woman’s $63,000 payment after she posted messages about her case on a newspaper website, for instance. …

“It kind of defeats the purpose of these types of lawsuits, which is to shine a light on police misconduct,” said Jeffrey Neslund, a Chicago attorney who represents plaintiffs in these cases.…

It’s rare for a city to impose gag orders on victims, says the paper. Except it’s not so strange when considering the lengths to which many states go to cover-up histories of police misconduct

New York City’s public radio station, WNYC, recently did a fascinating investigative report finding "that a police officer's disciplinary history is effectively confidential in almost half of US states.”

In some of these states, the law explicitly exempts these records from public view. In others, records are secret in practice because police departments routinely withhold them under vague legal standards or in spite of court precedents.…

In [23] states, and the District of Columbia, a police officer's disciplinary history is mostly unavailable through public records requests.

In some cases, all public employee personnel files are exempt from disclosure. In others, police departments withhold records under a general privacy exemption.

Laws in New York, California, and Delaware specifically make law enforcement officers' personnel records confidential.

Indeed, our home base of New York, it turns out, is one of the worst when it comes to public access to such records. Writes the New York Times,

The uniquely restrictive New York State law that is used to conceal the disciplinary histories of police officers — even some who have committed crimes — reared its head again last week in misconduct proceedings against the officer who brutalized the retired tennis player James Blake during a mistaken arrest in Manhattan last month.

The public has the right to be kept informed of police misconduct cases, especially at a time of heightened concern over police brutality. But when the city’s Civilian Complaint Review Board substantiated excessive force charges against James Frascatore, the officer who attacked Mr. Blake, it was allowed to release its findings to Mr. Blake’s lawyer but was barred from making them available to the public. Had Mr. Blake’s attorney not released the information, the public would still be in the dark.

And now, Massachusetts “is considering a controversial plan to shield investigations of police misconduct from the media and general public.”

A proposal by state Rep. Nick Collins, D-Boston, adds documents "related to any review of conduct of police officers which could result in disciplinary action" to a list of government materials exempted from public disclosure.

Interesting that the outliers making news over this issue are politically “blue” places like Baltimore Maryland, New York, and Massachusetts. Maybe they just like the color.

December 18, 2014

Earlier this year, Oliver Stone, one of Hollywood’s more courageous film directors, railed against President Obama for being spineless. The same has been said of other Democrats, of course. Now it’s Hollywood - Sony Pictures, more specifically - who's being disparaged for this trait, while President Obama and his party seemed to have suddenly found some backbone.

First Hollywood. It’s been said that Hollywood caters to 16-year-olds. All I know is that Hollywood makes a lot of dumb comedies. The film The Interview was probably one of them, although we’ll never know now that Sony “caved” and won’t release it. Interesting that it took this act for the words “Hollywood” and “spineless” to be suddenly linked in headlines, like this from the The Huffington Post: SPINELESS: Sony, Theaters Cave To Terror Threat.

The same day that happened, however, President Obama stood up to the right and restored diplomatic relations with Cuba. Governor Andrew Cuomo stood up to the oil and gas industry and banned fracking in New York. Not only that, two major federal criminal indictments came down charging corporate executives with major corporate crimes.

Law enforcement agents swooped in during predawn raids … and arrested executives and former staffers of a Framingham [MA] compounding pharmacy blamed for producing tainted drugs that killed dozens in one of the deadliest medication contamination cases in US history.…

Some defendants could face life in prison. Prosecutors called the case an “unprecedented” national tragedy, and the indictments ended two years of waiting for patients and families desperate for justice.

“Production and profit were prioritized over safety,” US Attorney Carmen M. Ortiz said during a packed news conference in her offices at the John Joseph Moakley Courthouse in South Boston.

The indictment alleges that New England Compounding and Medical Sales Management Inc. — a company that shared ownership with NECC and provided it with sales and administrative services — constituted a criminal “enterprise” under the federal racketeering law.

“Let me be clear: Actions like the ones alleged in this case display not only a reckless disregard for federal health and safety regulations but also an extreme and appalling indifference for human life,” acting US Associate Attorney General Stuart Delery said.

And another federal indictment was unsealed relating to Freedom Industries’ January chemical spill that contaminated the Elk River in Charleston, West Virginia, leaving “300,000 residents around West Virginia's capital without usable water for drinking and bathing for days.”

The federal indictment charges former Freedom Industries presidents Gary Southern and Dennis P. Farrell and two others with failing to ensure that the company operated in a reasonable and environmentally sound manner the steel tank that leaked the coal-cleaning chemical.

Southern also faces federal fraud charges related to the company's bankruptcy case. Freedom filed for the protection eight days after the Jan. 9 leak into the Elk River in Charleston. …

U.S. Attorney General Eric Holder said in a statement that the tank conditions at Freedom Industries "were not only grievously unacceptable, but unlawful. They put an entire population needlessly at risk. As these actions make clear, such conduct cannot, and will not, be tolerated."

This all follows the earlier indictment of Don Blankenship, the longtime chief executive officer of Massey Energy, who was indicted on charges that he orchestrated the routine violation of key federal mine safety rules at the company’s Upper Big Branch Mine prior to an April 2010 explosion that killed 29 miners. As we noted in our earlier coverage of this case, CEO indictments almost never happen.

May 28, 2014

You’d think that in light of hummus’ recent casualty count, hummus-makers might be feeling a little sheepish about pushing themselves out there too insistently. Not so!

To refresh, last week, a hummus plant in Texas recalled 14,860 pounds of it after an FDA inspection found a risk of listeria contamination (which makes people sick and can kill small children and the elderly). And then, the Occupational Safety and Health Administration “released new details on the death of Daniel Collazo, a worker at hummus-maker Tribe's factory in Taunton, Mass., who was killed by a machine in 2011” after the company “had been fined for failing to adhere to standard procedures that probably would have prevented Collazo's death, and the company had hired a consultant who told them that if they did not change their practices, a death was ‘likely certain’ within a year.”

But rather than sulking in a corner about these industry embarrassments, hummus-maker Sabra has come out swinging! The Los Angeles Timesreports today that the company has petitioned the FDA for help (although the reasons have nothing to do with health and safety). Rather, Sabra is demanding an “official hummus definition.” This is to stop hummus imposters who use insufficient chickpeas and tahini - an apparently urgent problem requiring immediate FDA attention.

Although I suspect some might disagree with the urgency of this in light of more pressing issues. Just ask customers of Belleville Farmer’s Market of Belleville, IL who bought shelled walnuts that “have the potential to be contaminated with Listeria monocytogenes” and are now being recalled following an FDA inspection.

And that’s nothing compared to people sickened due to recent outbreaks of chicken and meat food poisoning. For example, reports indicate that 574 people now have salmonella poisoning from Foster Farms chickens.

And last week, “nearly 2 million pounds of potentially tainted hamburger patties and steak burgers” were recalled because of E. coli contamination. Rachel Tamminga, a Kalamazoo, Michigan, college student, “was hospitalized for six days after eating meat in April allegedly produced by the Wolverine Packing Co.” She has now filed a lawsuit.

Tamminga is the first person to contend that she was sickened in an outbreak that federal health officials said has been linked to 11 E. coli O157:H7 illnesses in four states. Five of those cases were detected in Michigan, the Centers for Disease Control and Prevention said. Of those sick so far, illnesses began between April 22 and May 2, the CDC added.

Tamminga developed severe, bloody diarrhea and abdominal pains and spent a night lying on the bathroom floor, the complaint alleges. She had to leave school in the middle of finals week to go home to her parents.

“While there, she remained extremely sore and weak and blood tests showed that she continued to be anemic as a result of the loss of so much blood during her illness,” the complaint said.

On the other hand, there are hoaxes like black bean hummus. What to do, what to do?

June 11, 2013

At the October 29, 2007 meeting of a New York State medical
malpractice task force, the topic of which was patient safety, Dr. Ronald
Marcus, Director of Clinical Operations at the Department of OB/GYN at Beth Israel
Deaconess Medical Center and Assistant Professor of the Harvard Medical School, spoke. His presentation not only acknowledged the
extent of birth injuries caused by OB error, but also discussed the reasons for
this and proven methods to correct the situation. Dr. Marcus specifically discussed the concept
of team training or crew resource management that was developed by NASA to deal
with pilot error. Dr. Marcus found that
with crisis management training in OB emergencies, patient outcomes
dramatically improved, with a 50 percent decrease in low Apgars, neonatal
encephalopathy. With crew resource
management in place, he has seen a 23 percent decrease in frequency and 13
percent decrease in severity of adverse events, and a 50 percent decrease in OB
malpractice cases. (And we’ve since seen this kind of result repeated elsewhere, with huge cost savings too.)
If medical
malpractice were not the cause of a lot of birth-related injuries, clearly
these kinds of statistics would not exist.

This presentation was followed
by Dr. Richard Berkowitz, representing the American
College of Obstetricians and Gynecologists (ACOG), who conducted a 45-minute lecture, mostly sweeping generalizations, about this group’s view of the “science” around obstetrical injuries, essentially dismissing
Dr. Marcus’ extremely helpful presentation and denying for the most part that
birth injuries are ever caused by negligence - arguments that they raise in
litigation and lose, by the way. ACOG, it turns out,
is among the most aggressive leaders in the medical lobbies’ push for liability
limits, strongly advocating a nationwide $250,000 cap on the amount children who are
catastrophically injured at birth can receive for a lifetime of pain,
suffering, permanent disfigurement and disability. They think $250,000 is actually too high. (See more here.) They are also notorious for untruthful fear-mongering, telling women and families
that they would be unable to get a doctor unless they agreed to support laws
that limit their own legal rights should their child be negligently injured at birth. (Look
at how dishonest they were in New York. Look how the same issue was fabricated in
Texas.)

So let me ask you a simple question. If you wanted to reduce deaths, injuries,
claims and lawsuits – not to mention costs –how would you do it? Implement proven safety measures such as
those described by Dr. Marcus? Or
provide immunity to doctors who have already injured a patient, but who have followed national liability standards written by ACOG?

Well, the Center for American Progress, which has recently
gotten in hot water for the enormous amount of money they take from
corporations, has chosen to recommend the later, at least in certain circumstances. After repeating a lot of false and
debunked nonsense about “defensive medicine,” which I guess CAP needed to do to find
any justification for this idea, they have decided to propose immunity for
doctors who follow national “legal
standards of care” written by ACOG and other specialty medical societies – i.e., ACOG's lobbying and political allies. CAP
believes that it would be not only fair to patients, but a good idea for patients to
have their cases judged by national liability standards written by inherently biased doctor
groups (written, by the way, with the knowledge that they will exculpate their own physician
members.)

Interestingly, a U.S. House bill, H.R.1473 (the Standard of Care
Protection Act of 2013) sponsored by “tort reform” doctor-turned-Congressman-turned-
Senate candidate Phil Gingery (R-GA) - normally not a great friend of ours - would require that
“The development, recognition, or implementation of any guideline or other
standard under any Federal health care provision shall not be construed to
establish the standard of care or duty of care owed by a health care provider
to a patient in any medical malpractice case.”
I think he's right! (Must be that new “Big Brother/strange bedfellows” thing.)

If you’d like to give CAP a piece of your mind about this
dumb idea, I am sure they’d love to hear from you.

April 25, 2013

Mass
casualties aren’t just for wars anymore.
Let’s put aside “terrorism” for the moment. Think about the carnage over the last week
due to corporate negligence and recklessness.
There was yesterday’s horrific building collapse in Bangladesh, killing hundreds and injuring thousands of workers making cheap goods
for Wal-Mart, while likely being paid about $37 a
month. Earlier today, there were explosions on two fuel
barges in Mobile, AL, leaving three people severely burned. This follows last week's horrific fertilizer plant explosion
in Texas, which “killed at least 14 people, injured
200 and damaged dozens of buildings.” (See more updates here.)

Back to terrorism. Looks like corporate profiteering may play a role here too, at least as victims try to recover. The Wall Street Journalreports today that if
the Boston Marathon bombings are officially declared acts of terrorism, the
insurance industry would not liable for many business claims and in any event, the industry's liability is capped. They made sure of that 11 years ago. Specifically,

Companies could lose insurance payouts for property, lost income and
other damage if the bombings are officially declared an act of terrorism
by key U.S. officials, under an 11-year-old law that hasn't yet been
tested, according to industry executives and lawyers, as well as city
and business leaders in Boston.

The reason: After the Sept. 11, 2001, terrorist attacks,
policies sold to business customers typically haven't covered losses stemming
from "terrorism" unless the customer pays extra for the coverage. … If
there is no terror finding, damages would be covered in general under regular
property-and-casualty policies, said Robert Hart wig, president of the trade
group Insurance Information Institute.

Large numbers of businesses in the area around
the Boston bombings are believed to lack added terrorism protection, though
figures aren't yet available, city and state officials said Wednesday.
Nationally, about 60% of businesses pay extra for terrorism coverage, with a
higher percentage in New York and some other big cities such as Boston,
according to industry estimates. But many small businesses forgo high-price
terrorism coverage, and Boston's Copley Square is filled with small bars,
restaurants and shops.

Rattlesnake Bar & Grill on Boylston Street,
which was closed for part of last week, doesn't have terror coverage. Co-owner
John Gardner estimates lost business in the tens of thousands of dollars and
holds out hope his insurer will cover some losses. He called the possibility
that a terror declaration could keep him from getting compensated "the
frustration of dealing with insurance companies."

The
article makes reference to a law enacted in 2002 after insurance exes marched
into the White House demanding the federal treasury provide a “multi-billion-dollar
insurance ‘backstop,’ essentially capping the liability of the
property/casualty insurance industry, an industry worth hundreds of billions of
dollars, in the event of future terrorist attacks.” This was something the heavily-capitalized property-casualty
insurance industry did not need. But no one ever said the insurance industry
was shy about threatening to pull the rug out from under the U.S. economy to
get what it wants, creating an atmosphere of
“crisis” to promote its legislative agenda while at the same time escaping any
meaningful public scrutiny or regulatory control.

Sorry about that, Boston. (For more, see this study from the Center for
Justice & Democracy, "Shakedown: How The Insurance Industry Exploits A Nation
In Times Of Crisis." )

April 19, 2013

We haven’t posted much this week. That’s not because of the scarcity of civil
justice news but rather the opposite - we were overwhelmed by the significance of
it. Finally, here is a quick review.

We’ll start by noting that April 20 marks the third
anniversary of the Deepwater Horizon oil rig explosion in the Gulf. The Coalition for Sensible Safeguards has a
good wrap-up. Ken Feinberg, the lawyer who was hired by BP to administer
its highly-controversial victims’ compensation fund, the Gulf Coast Claims Facility (now taken over by the court), has been hired to distribute funds to the Boston Marathon victims. This money has been donated by
various charitable sources. It’s our view that
victim compensation funds are far more appropriate where there is no discernable
wrongdoer capable of compensating for mass casualties - a wrongdoer that should be held accountable in court, like BP. We’ll see how Mr. Feinberg does in his new
role.

The United States has had some of the best and, under some
circumstances, the only laws available to human rights survivors to obtain some
sort of redress, and legally to hold abusers accountable. These laws include the Alien Tort
Statute, a law which (you would think) should be a source of pride in this country, especially
when you see what happens in other countries like Guatemala. (There, corrupt leaders just stopped the genocide
trial against war criminal Rios Montt.) But the U.S. Supreme Court substantially chipped away at the ATS this week by greatly limiting its reach. (See more in Scotusblog and from the Alliance for Justice.)

Turning to Texas, it’s clear lax regulation was largely to
blame for the tragic fertilizer plant explosion. The Dallas Morning Newsput it this way: “[T]his much is clear: The explosion came after years in which state and federal
agencies overlooked the potential for what some say was a preventable
catastrophe.” More here. And, "A soil scientist at U.C. Berkeley says
the deadly Texas explosion is another example of a troubling pattern; a lack of
proper oversight to ensure public safety. Professor Garrison Sposito is not the
only scientist or engineer to make the same connection. He says you can see it
in the Deepwater Horizon oil spill …” So
back to that again. And that's not all. Texas corporations also know that if they kill or injure people, it's unlikely they'll ever be held fully accountable in court.

Texas is also home to one of the most startling medical
malpractice news stories of the week. After
years of trying (falsely, we might add)
to convince the public that enactment of draconian “tort reform” in Texas caused
doctors to flood into the state, this week Texas lawmakers took up emergency legislation
to fix - wait for it – the state’s critical
doctor shortage.

And that’s not the only unbelieveable med mal story this week.
Anyone who thinks profit isn’t the primary cause of our nation’s
horrendous patient safety problem better take a look at the New York Times
this week, which reported on a JAMA study finding that, “Hospitals make money from their own mistakes because insurers pay them for the
longer stays and extra care that patients need to treat surgical complications that
could have been prevented.…”

Dr. Barry Rosenberg, an author and a managing director of
Boston Consulting, said the study came about because his firm was working with
Texas Health Resources to find ways to reduce its hospitals’ surgical
complication rates, which, at 5.3 percent, were in line with those reported by
similar hospitals. Part of that work involved analyzing the costs, and he said
the team was stunned to realize that lowering the complication rates would
actually cost the hospital money.

“We said, ‘Whoa, we’re working our tails off trying to lower
complications, and the prize we’re going to get is a reduction in
profits,’ ” Dr. Rosenberg said in an interview. …

In an editorial, Uwe E. Reinhardt, an expert on medical
economics from Princeton University, called the study’s findings “troublesome
but not surprising.” He called the current payment system “untoward,” adding
that it “can tempt otherwise admirable people into dubious conduct.”

Dubious, and sick. And speaking of
sick, let’s not forget guns.
You all know about the
shameful Senate gun vote this week. As if the gun industry couldn't get any more sickening, this industry, which already is immune from liability for gun
violence, started blocking Boston bomb investigators because apparently the reach of their
extensive legal protection wasn’t infinite enough for the NRA.

April 16, 2013

There’s a great Mr. Rogers quote running around the Internet
today: “When I was a boy and I would see scary
things in the news, my mother would say to me, ‘Look for the helpers. You will
always find people who are helping.” For
those of us who were in Lower Manhattan on 9/11, we know that’s true. Thank you to the helpers. Our hearts go out to everyone in Boston today.

There’s really little more to say on a day like this. But some PopTort readers may find the latest
newsletter from the Center for Justice & Democracy somewhat
interesting. It deals with the topic of sports and its
lead story is about spectators at sporting events. The article discusses one of Congress’s first responses to 9/11 - an
immunity law, called The Safety Act of
2002. While really aimed at the developers of anti-terror technologies and usually
bestowed on defense and security companies, sports venues are now qualifying
for immunity too. Indeed last
year, Yankee Stadium became the first big sports venue to earn this Department
of Homeland Security special designation, “meaning that the facility has passed a battery of tests
and won approval from DHS, giving the franchise broad
immunity against lawsuits stemming from a terrorist attack on
the stadium.” And since that time, NFL
and Superbowl venues have received liability protection, as well.

January 28, 2013

How weird was it that around the same time Daniel Day Lewis was reciting the physicians’ Hippocratic Oath while accepting his Screen Actors Guild award, a bad case of medical negligence was happening over at PBS. That would be the death of Downton Abby’s Lady Sybil from pre-eclampsia, thanks to a misdiagnosis from a terribly pompous obstetrician, who even defied the local doctor who told him that Sybil needed to get to the hospital asap.

Notice the guy never apologized? We’re pretty sure that wasn’t because he feared being sued a century ago in Britain.

Also weird was the coincidental very long piece in the Boston Globe magazine by Darshak Sanghavi, the chief of pediatric cardiology at the University of Massachusetts Medical School in Worcester, titled, “Medical malpractice: Why is it so hard for doctors to apologize?”
The case study in this article was another obstetric story, although this one was true and resulted in the death of a premature infant, whose mother was treated so poorly by hospital personnel who were covering up information, that she finally sought counsel and sued.

There were actually a few good points in this article aside from its ridiculous characterization of her attorneys – the only ones who eventually helped her, by the way. (“For patients seeking information, the only obvious recourse is to call a malpractice lawyer, whose livelihood depends on replacing a patient’s desire for comfort and understanding with a need for vengeance.” Vengeance? Take a look at the stories at the bottom of this page and let me know if you think “vengeance” was motivating any of them.)

Here are a few additional points. The authors say, “When a mistake is suspected, it may be unclear who from a team must step in to take responsibility.” Well, it’s worse than that actually. As we noted in this post, the U.S. Dept. of Health and Human Services published a study last year about hospitals' massive error “underreporting” problem because hospitals employees don’t seem to know what patient harm even is – and if they do, they think it’s someone else’s job to report it.

There is reference to a new Massachusetts law “that, among other things, usually allows doctors to speak more openly to patients and families who were harmed, even apologize to them, without worry that their words will later be used against them in court.” Well, there’s actually much more to it than that. If the case does go to trial (there is a 6 month waiting period from the time the attorney notifies the provider of the case and the actual filing of the case), and the doctor deviates at all from what was told to the patient, whatever the doctor admitted to – including the apology itself– can indeed be used in court. It’s a check to make sure there is accurate and honest disclosure.

In terms of Mr. Boothman’s program at the University of Michigan Health System, hhmm. We’ve noted the problems with his system before. While we were originally quite skeptical of the Massachusetts program, our further investigation makes us think it's far less problematic for patients than Michigan’s.

We do really like these points, however:

[T[here is a yawning chasm between physicians’ perception of malpractice costs and the reality of them [and] those annual bills for doctors haven’t been rising the way, say, the average person’s health insurance premiums have. On the contrary, a recent analysis showed that inflation-adjusted malpractice premiums actually fell from 1975 to 2005 for 96 percent of all Massachusetts physicians. (That didn’t stop the American Medical Association from declaring this a “crisis state.”)

As far as defensive medicine, says the author, “[s]tudies show that doctors order a lot of questionable testing and treatment even when malpractice risks are very low.” And, “Contrary to many doctors’ beliefs, there is no epidemic of frivolous lawsuits” and “when doctors make an actual mistake, the system is slightly biased in their favor.” And there’s more:

The misleading image of the doctor besieged by bogus lawsuits dangerously obscures an important fact: The vast majority of major medical errors never see the light of day. A classic 1991 study found that only about 2 percent of patients harmed by medical negligence filed a claim. According to a spreadsheet I was given, Harvard-affiliated hospitals were the target of only 90 malpractice claims relating to children between 2006 and 2010, a period when doctors racked up millions of patient encounters. The vast majority of the medical care at these hospitals is superb, to be sure, but it strains credibility to think that any major academic center makes a harmful mistake so rarely (especially when a 2010 study showed that 15 percent of all hospitalizations result in preventable harms).

The author also has good things to say about CRICO, insurer for the Harvard system, which focuses directly on reducing errors as the way to stop death, injuries, claims and lawsuits. The insurance industry could be playing a much larger loss prevention role than they are. See our earlier coverage here of the NY Presbyterian Hospital-Weill Cornell Medical Center program instigated by the hospital’s insurance carrier, MCIC Vermont.

And something needs to be done about doctors like Wisconsin’s Dr. David Almasy, who killed Nicole Johnston, a 35-year-old mother of four by giving her “at least 100 times too much epinephrine.” For this, “the Wisconsin Medical Examining Board in 2011 reprimanded Almasy, required him to take two classes and fined him $1,200.”

January 10, 2013

Women must be truly honored by the amount of attention the
pharmaceutical industry pays to them.
The constant marketing push – what a compliment. The disproportionate number of drugs
that turn out to be unsafe causing needless deaths and injuries – what a
treat!

And age is irrelevant. Take the Ortho-Evra Patch, which wasmarketed to young women with sexy
television commercials and fashion runway shows,
but which caused blood clots, caused heart attacks and strokes. Or take synthetic hormones,
often marketed to women experiencing menopause. In the 1960s, a popular new book by an industry-funded
doctor called Feminine Forever argued
that such women are “castrate,” “the equivalent of a
eunuch,” but lucky for them, estrogen replacement therapy (ERT) could
fix all that. Not mentioned was
evidence since the 1930s and 1940s that ERT caused cancer. It took until 2002
for NIH researchers to finally confirm a significant increase in the risk of
breast cancer, heart attacks, blood clots and strokes from ERT. See all of this explored in much more
detail in the Center for Justice & Democracy’s report, The Bitterest Pill.

Speaking of hormones, DES was a
synthetic estrogen approved by the FDA to prevent miscarriages and widely
prescribed to women from the 1940s through the 1960s. DES did not work but instead caused cancer, infertility and
other serious physical problems for the women who took it, and even more
extensively, the children they carried who were exposed pre-natally. For almost two decades after the drug
was proven ineffective, manufacturers continued to push the drug and expose
hundreds of thousands of women and their offspring to risk. It was finally banned in 1971. But until women started bringing
lawsuits, many DES exposed women did not know about the risks they faced.

But the lawsuits weren’t so
easy. Many DES claims were
declared “time-barred” – in other words, judges penalized women and their
children for the latent nature of their injuries, or because they had not
learned earlier of health risks that the company had covered-up. There was also the problem of
identifying the correct manufacturer, until the courts developed “concerted
action” and “market share” liability theories thanks to pioneering lawyers like
our friend, Sybil Shainwald.
So some cases have succeeded, and
today we can report that four sisters with breast cancer and other severe reproductive
problems in Boston, whose mother took DES, have forced Eli Lilly to
settle their claims.
This was after the company vowed to fight them in court, saying, “We believe these claims are without merit and are prepared to defend against
them vigorously.” Until they
didn’t. And there could be more
settlements soon:

A total of 51 women, including the Melnick sisters, filed
lawsuits in Boston against more than a dozen companies that made or marketed a
synthetic estrogen known as DES.

The Melnick sisters’ case was the first to go to trial. The
settlement was announced Wednesday on the second day of testimony.

Said one of the sisters, Michele Melnick Fecho, “who was 42
when she became the first sister diagnosed,”

"I think it's important to be your own advocate … If a
woman – a DES daughter – knew this, she could get earlier screening."

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